Scott W. Eisenlohr v. Pamela Eisenlohr (2013)

RULING RE APPLICATION FOR WAIVER OF APPELLATE FEES (# 322) AND DEFENDANT'S MOTION TO REARGUE RULING OF OCTOBER 8, 2013 (# 323)

I

INTRODUCTION

On October 8, 2013, this court ruled that the defendant's motions for contempt (# 317) and modification (# 318), and her proposed “parallel parenting plan” (# 319) are wholly without merit and, in the best interest of the minor child, would not be served scheduled, heard or placed on the calendar.¹

Relying on Practice Book § 11–12, the defendant, by motion dated October 28, 2013, sought to reargue this court's October 8, 2013 ruling.   On October 30, 2013, the plaintiff filed a memorandum in opposition to the motion to reargue.   The defendant also filed an application for waiver of appellate fees.  Practice Book § 63–6.

The court allowed reargument and the parties came before the court on October 31, 2013, and were heard on both the motion to reargue and the application for waiver of appellate fees.   Although the court permitted reargument, the court now denies the relief requested by the defendant and adheres to its ruling of October 8, 2013.   The court grants the application for waiver of appellate fees.

A

Application for Waiver of Appellate Fees

The court reviewed the defendant's application for waiver of appellate fees, which was filed under oath.   The court finds that the defendant is indigent and, therefore, waives any filing fees associated with the appeal proposed by the defendant.

The court notes that the defendant's appeal is from the court's October 8, 2013 ruling—a ruling that was not associated with any activity in open court.   However, on October 31, 2013, the court did hear argument from the parties relative to the motion to reargue.   To the extent the defendant seeks to include the transcript of that proceeding in her appeal, the court grants her request to waive transcript fees associated with the October 31, 2013 hearing on the motion to reargue.

B

Motion to Reargue

To address the defendant's motion to reargue, it is necessary to place the court's October 8, 2013 ruling in context by reviewing some of the relevant history of this case.

In August 2003, the plaintiff filed his complaint and the defendant then filed her cross complaint.   Over the course of the next ten years, the defendant filed some twenty-two motions for contempt (# # 116, 129, 130, 131, 144, 146, 164, 170, 187, 188, 190.50, 195, 197, 202, 224, 247, 251, 252.50, 257, 294, 313 and 317).   The plaintiff also filed numerous motions for contempt in the course of this highly contentious case.

The defendant acknowledged, in open court, that no court has ever found the plaintiff to be in contempt of any court order.   The file for this case is now five folders thick, with pleading numbers reaching, as of this writing, to number 324.   Although this case has been pending for ten years, the court has only maintained records of scheduled court appearances, in family matters, since approximately April 8, 2008.   However, the office of the clerk has determined that, since April 8, 2008, this case has been scheduled for a court appearance fifty-nine (59) times.   Although a number of those scheduled appearances were continued, it is, nonetheless, abundantly clear that the court has devoted very substantial resources to this case.

The record reflects the following relevant facts and findings.   The defendant has made many unsubstantiated claims of various forms of misconduct by the plaintiff, including baseless claims to the Department of Children and Families.   The defendant's many unfounded claims have had, inter alia, the following deleterious effects:  the plaintiff incurred unnecessary counsel fees for years in order to respond to the defendant's many baseless claims;  the plaintiff lost time from work to appear in court to answer the defendant's motions;  and the prolonged and contentious litigation has had a demonstrably deleterious effect on the minor child.   Many of the defendant's motions were drafted, filed and litigated when the defendant was unemployed and, thus, free to file motions and come to court at any time.

The foregoing activity unnecessarily dissipated resources that should have been available for the needs of the minor child.   The defendant was brought before the family support magistrate on October 1, 2012, due to her failure to pay child support and/or unreimbursed medical bills.   At that time, the court found an arrearage in the amount of $1,188.   The defendant was unemployed in October 2012, despite an April 1, 2011 order by this court that she seek and obtain employment.   The defendant acknowledged that, when she was before the family support magistrate, she learned that a failure to make child support payments and to address the arrearage could result in sanctions, including incarceration.   The family support court records reflect that, after gaining such knowledge, the defendant obtained employment and resolved the arrearage on or before March 18, 2013.

Based upon the content of the defendant's pleadings and the arguments presented by both parties in the course of many court appearances, the court is convinced that the defendant's overly litigious conduct has been prompted, at least in part, by her wish to inflict damage upon the plaintiff's current marriage.

More recently, the defendant's contempt filings have been curtailed, at least in part, by the court's orders restricting such filings in an effort to conserve family resources that must be preserved for the benefit of the minor child, and to conserve the copious hours of judicial resources that have been devoted to the defendant's claims that so often, upon examination, have been found to be baseless.   See, e.g., Rulings of January 3, 2013 and April 23, 2013.

Above all, what troubles the court is the damage that this litigation has brought upon the minor child.   This conclusion is based upon the pleadings filed by both parties, the multiple reports by therapists and other professionals, the opinions previously expressed by the guardian ad litem,² and the finding of the Department of Children and Families that the defendant emotionally abused the minor child.

The minor child is only eleven years of age and her parents have been litigating this case, with few pauses, for the past ten years.   More than once, this court has quoted the child's plaintive statement that “these court motions are ruining my life.”   The court learned, through a report submitted by one or both of the parties, that the child does not want to be forced to attend therapy;  she wants a normal life and to play with her peers.³  The minor child does not want to be forced to attend parent-unification therapy, and the therapist selected by the parties made clear that she has no interest in attempting to force the minor child to attend therapy that she does not want.   In fact, in her most recent motion for contempt, the defendant included an illuminating report from Louisa Krause, dated September 2, 2013, making clear that forcing the child into therapy will damage the child;  a conclusion that seems obvious to all but the defendant.

The defendant's October 3, 2013 motion for contempt, motion for modification, and proposed parallel parenting plan, all of which were the subject of this court's October 8, 2013 ruling, appear to disregard the repeated cries for relief expressed by the minor child.   Instead, the defendant's motions reiterate the unceasing, oft-litigated and oft-rejected claims that the child's unhappiness with the defendant is the fault of the plaintiff and the child's stepmother, but not, in any way, the product of the defendant's actions.

The court has given the defendant numerous opportunities to appear and address the many motions for contempt and modification that she has filed over the years.   The motions that she wishes to bring before the court at this time repeat a familiar theme.   In essence, the defendant's primary claim ⁴ is that the plaintiff is somehow in contempt of court because the minor child does not want to engage in mother/child reunification therapy.   The plaintiff made clear, in open court, that he favors family reunification therapy but, as he aptly stated, “I can only go so far.”

As has been discussed, supra, the therapist chosen by parties made clear in her message of September 2, 2013, that mother/child reunification therapy will not be possible, not because of the plaintiff or his wife, but rather because the child stated that “she has no desire to meet with her biological mother, unless her mother answers some of her questions ․” On July 22, 2013, the minor child stated to the therapist that if she were to learn that the defendant intended to come to a session, the minor child herself “would refuse to come.”   The therapist met with the minor child again on August 14, 2013, and the child again made clear that she did not want a relationship with the defendant, and that “she will not get out of the car even if she had to be dragged.”   The therapist concluded her message by stating that her “recommendation to the courts is to discontinue their mandate of reunification therapy between mother and child for the reasons noted above.”

In the face of these clear, unequivocal statements, the defendant has responded by alleging that the plaintiff is in contempt of court for failing to effect reunification therapy.   The court's long history with this case, its familiarity with the many pleadings and with the parties, and its consideration of the previously expressed views of the guardian ad litem, combine to convince the court that the minor child has been deeply and adversely affected by the litigation that has ensued, especially by the defendant's insistence that the plaintiff be held in contempt, despite the lack of factual or legal basis for such a finding.

The defendant's conduct is dedicated to achieving what she wants for herself, rather than what is best for the minor child.   It may be that the damaged relationship between the minor child and the defendant may heal in time.   However, the record is clear that, in the words of the therapist who met with the child in July and August of 2013, “forcing reunification therapy upon a child of this age will only further increase the animosity she feels towards her mother and damage any small chance there might be of reunification down the road later in life.   If in fact she were to be brought in kicking and screaming, this would be traumatizing.”   Def.'s Mot. for Contempt 22–23, October 3, 2013.⁵

It is not the desire or intent of this court to disparage or belittle the defendant.   The foregoing findings and conclusions are made solely for the purpose of explaining the context that led the court to decline to calendar the defendant's recent motions for contempt and for modification.   The court concludes that the defendant is attempting to use the judicial system as a bludgeon to achieve personal goals, regardless of the cost to the minor child and to the plaintiff.   The court has an obligation, to the minor child in particular, to resist such a misuse of our judicial system.

II

DISCUSSION

“[T]he purpose of reargument is ․ to demonstrate to the court that there is some decision or some principal of law which would have a controlling effect, and which has been overlooked, or that there has been a misapprehension of facts ․ It also may be used to address alleged inconsistencies in the trial court's memorandum of decision as well as claims of law that the [movant] claimed were not addressed by the court.”  (Citation omitted;  internal quotation marks omitted.)  Opoku v. Grant, 63 Conn.App. 686, 692, 778 A.2d 981 (2001).  “If a court is not convinced that its initial ruling is correct, then in the interests of justice it should reconsider the order ․” (Internal quotation marks omitted.)  Tiber Holding Corp. v. Greenberg, 36 Conn.App. 670, 671 n.1, 652 A.2d 1063 (1995).  “[A] motion to reargue [however] is not to be used as an opportunity to have a second bite of the apple or to present additional cases or briefs which could have been presented at the time of the original argument.”  (Internal quotation marks omitted.)  Opoku v. Grant, supra, 692–93.

The defendant's motion for reargument, like her motions for contempt and modification, is not well-organized and appears to reflect a stream of consciousness rather than an organized argument.   It does not identify any decision or principle of law that the defendant did not raise in her motions for contempt and modification, does not identify any decision or principle overlooked by this court, and does not identify any misapprehension of facts or inconsistencies in the court's ruling.   Instead, the motion for reargument simply restates, in marginally different ways, the same points expressed in her thirty-nine-page motion for contempt.   Thus, the defendant is seeking a “second bite of the apple.”   Consequently, the motion to reargue is denied.

So ordered.

John A. Danaher III

FOOTNOTES

FN1. That decision was consistent with an order filed by this court on April 1, 2011.   The defendant appealed that ruling, alleging, inter alia, that this court had improperly restricted her ability to seek modification of its custody and parenting access orders.   The Appellate Court affirmed this court's ruling on May 8, 2012.  Eisenlohr v. Eisenlohr, 135 Conn.App. 337, 43 A.3d 694 (2012)..  FN1. That decision was consistent with an order filed by this court on April 1, 2011.   The defendant appealed that ruling, alleging, inter alia, that this court had improperly restricted her ability to seek modification of its custody and parenting access orders.   The Appellate Court affirmed this court's ruling on May 8, 2012.  Eisenlohr v. Eisenlohr, 135 Conn.App. 337, 43 A.3d 694 (2012).

FN2. The defendant notes, and implicitly complains, that the guardian ad litem did not attend the April 2013 and July 2013 hearings.   Def.'s Mot. for Contempt 12.   Over the years the guardian ad litem devoted enormous time and energy to the task of inquiring into a great many baseless complaints by the defendant.   The court has attempted to limit further abuse of the guardian ad litem's time by not requiring her assistance unless such assistance is found to be necessary.   The defendant's application for waiver of fees acknowledges that the defendant is indebted to the guardian ad litem in the amount of $22,475.83.   The court is fully aware of the fact that the defendant has shown little inclination to pay that debt.   This case is illustrative of the finding by the Appellate Court that “guardians ad litem ․ provide invaluable services to the children of Connecticut and the judicial system alike, and are, generally speaking, grossly underpaid, if paid at all.”  In re Tayquon H., 76 Conn.App. 693, 701 n.8, 821 A.2d 796 (2003).   In view of the foregoing facts, it would seem ironic that the defendant is now complaining that the guardian ad litem is insufficiently attentive, but in view of the defendant's frequent practice of wasting the resources of others, her complaints are, unfortunately, predictable rather than ironic..  FN2. The defendant notes, and implicitly complains, that the guardian ad litem did not attend the April 2013 and July 2013 hearings.   Def.'s Mot. for Contempt 12.   Over the years the guardian ad litem devoted enormous time and energy to the task of inquiring into a great many baseless complaints by the defendant.   The court has attempted to limit further abuse of the guardian ad litem's time by not requiring her assistance unless such assistance is found to be necessary.   The defendant's application for waiver of fees acknowledges that the defendant is indebted to the guardian ad litem in the amount of $22,475.83.   The court is fully aware of the fact that the defendant has shown little inclination to pay that debt.   This case is illustrative of the finding by the Appellate Court that “guardians ad litem ․ provide invaluable services to the children of Connecticut and the judicial system alike, and are, generally speaking, grossly underpaid, if paid at all.”  In re Tayquon H., 76 Conn.App. 693, 701 n.8, 821 A.2d 796 (2003).   In view of the foregoing facts, it would seem ironic that the defendant is now complaining that the guardian ad litem is insufficiently attentive, but in view of the defendant's frequent practice of wasting the resources of others, her complaints are, unfortunately, predictable rather than ironic.

FN3. See discussion, infra, regarding September 2, 2013 report by Louisa Krause, M.S., LMFT..  FN3. See discussion, infra, regarding September 2, 2013 report by Louisa Krause, M.S., LMFT.

FN4. To be sure, the defendant raises many complaints, including the fact that the minor child refers to her by her first name;  the minor child sometimes hangs up the phone when the defendant calls;  and the defendant was not informed of the minor child's involvement in soccer games.   However, the defendant's own motion undercuts her claims.   For example, her motion for contempt includes a copy of email traffic between the parties, illustrating that the plaintiff did, in fact, inform the defendant of the child's soccer activities.   That email traffic also conveys the child's wish that the defendant not attend soccer practice after an incident in which the defendant embarrassed the child, one week prior, on the child's first day of middle school.   The defendant blithely reports that she and the maternal grandmother positioned themselves outside of the child's school for the child's first day of sixth grade “to cheer the child on.”   Def.'s Mot. for Contempt 21.   Faced with that situation, the child, not surprisingly, refused to leave the car to enter school.   The defendant now faults the child's stepmother for the fact that, because the child would not leave the car, the child was late for school on the “milestone sixth grade opening day of school including being denied a first day cheer on from her mom and grandmother.”   Incredibly, the defendant does not appreciate the fact that such conduct would embarrass virtually any child entering middle school for her first day of classes.   Instead, the defendant seeks to have the plaintiff held in contempt due to the incident..  FN4. To be sure, the defendant raises many complaints, including the fact that the minor child refers to her by her first name;  the minor child sometimes hangs up the phone when the defendant calls;  and the defendant was not informed of the minor child's involvement in soccer games.   However, the defendant's own motion undercuts her claims.   For example, her motion for contempt includes a copy of email traffic between the parties, illustrating that the plaintiff did, in fact, inform the defendant of the child's soccer activities.   That email traffic also conveys the child's wish that the defendant not attend soccer practice after an incident in which the defendant embarrassed the child, one week prior, on the child's first day of middle school.   The defendant blithely reports that she and the maternal grandmother positioned themselves outside of the child's school for the child's first day of sixth grade “to cheer the child on.”   Def.'s Mot. for Contempt 21.   Faced with that situation, the child, not surprisingly, refused to leave the car to enter school.   The defendant now faults the child's stepmother for the fact that, because the child would not leave the car, the child was late for school on the “milestone sixth grade opening day of school including being denied a first day cheer on from her mom and grandmother.”   Incredibly, the defendant does not appreciate the fact that such conduct would embarrass virtually any child entering middle school for her first day of classes.   Instead, the defendant seeks to have the plaintiff held in contempt due to the incident.

FN5. The court recognizes that the defendant's memorandum is unpaginated.   However, it appears to the court that the therapist's report to the court's Family Relations Officer, Roger Frigon, is reproduced at pages 22–23 of the defendant's memorandum..  FN5. The court recognizes that the defendant's memorandum is unpaginated.   However, it appears to the court that the therapist's report to the court's Family Relations Officer, Roger Frigon, is reproduced at pages 22–23 of the defendant's memorandum.

Danaher, John A., J.